Preventive Detention Orders Can Be Passed Even When A Person Is In Police/Judicial Custody, Compelling Reasons Must Be Recorded: J&K&L High Court

Justice Sanjay Dhar observed:

"It is trite law that the preventive detention orders can be passed even when a person is in police/judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law."

The plea before court was challenging a detention order issued by District Magistrate, Srinagar on ground that it was mechanically produced without application of mind, inasmuch as the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations.

Petitioner argued that the Constitutional and statutory procedural safeguards have not been complied with in the instant case. It was further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order, inasmuch as the detenue was already admitted to bail in one of the FIRs, mention whereof has been made in the grounds of detention.

He stated that there has been non-application of mind on the part of the detaining authority as the detenue was already in custody in connection with FIR for offences under Section 147, 148, 336, 307, 188, 269 IPC of P/S Pantha Chowk, mention whereof has been made in the grounds of detention, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detention.

The respondent argued that the activities of detenue are highly prejudicial to the security of the State. It was pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same was read over and explained to him.

The petitioner then contended that the impugned detention order suffers from non-application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been acquitted in a FIR mentioned in the grounds.

The Court noted that the non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law.

"It is also settled position of law that a person involved in a criminal case can be detained under the provisions of preventive detention laws provided there are compelling circumstances for doing so otherwise the order of detention becomes unsustainable." Court said.

The Court also recorded that the detaining authority has not, in the grounds of detention spelled out any reason, much less compelling reasons for resorting to preventive detention, despite noticing that the petitioner was already booked and arrested in the said FIR.

Coming to the execution report the court said:

"It was incumbent upon the respondents to furnish not only the copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs as well as the other material on the basis of which petitioner's involvement in the FIRs is shown. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record."

In view of the above the Court was of the view that vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

In view of the above, the court directed the detenue to be released from the preventive custody if provided he is not required in connection with any other case.